The Curious Case Of Ellen Pao, One Year Later
In 2015, diversity and inclusion were quite the buzzwords in the tech and legal industries; in 2016, can diversity and inclusion initiatives have a real, significant impact on the data in our profession?
Ellen Pao
“Italian, Caucasian, Japanese / Spanish, Indian, Negro, Vietnamese / MCs, disc jockeys / To all the fly kids and the young ladies.” — Grandmaster Flash & the Furious Five
Last year, Ellen Pao’s gender discrimination lawsuit was the buzz of Silicon Valley. Was Pao too opinionated, with “too sharp elbows” – or a victim of gender bias? As Fortune’s Vivian Giang noted, one thing seemed clear: young women working in Silicon Valley were watching this case carefully – and even a little fearfully.
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During the Pao trial, employment lawyers like Kathleen Lucas closely monitored Ellen Pao’s sex-discrimination case against Kleiner Perkins Caufield & Byers because they believed the verdict could have big potential implications in the venture capital and tech industries. Shortly after the verdict, employment attorneys shared their differing views on the legacy of the case.
The tech industry and the legal profession share many of the same characteristics with regard to diversity and inclusion. Many of the same restrictive structures, policies, and biases can be found in both sectors. Suffice it to say, the tech industry and legal profession (along with others) are both facing a diversity crisis. How has either employment field changed, if at all, since the outcome of the Ellen Pao trial?
In last year’s post The Curious Case Of Ellen Pao And The Lesson We Can Learn From It, I wrote about what insights the legal profession could take away from the Pao case. ABA past president Laurel Bellows, Professor Melissa Hart, and I also addressed the Pao trial on the Lawyer 2 Lawyer Podcast, where we discussed the importance of transparency and objective metrics in fighting discriminatory tendencies of a firm’s culture.
When it comes to the tech industry, San Francisco programmer Shanley Kane believes there is a “prevalent — and ingrained — sense of intentional exclusion.” Could the same be said of the legal profession? I’d argue that the majority of employees encounter unconscious racial and gender bias more often than overt prejudice and may face discrimination even where no harmful intent of discrimination exists. Whether intentional or unintentional, how does your law school or law firm address racial and gender bias?
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In yesterday’s Wired article A Year After The Ellen Pao Verdict, Tech Still Gets Diversity Wrong, Davey Alba noted:
In the year since the verdict came down, [workplace diversity] discussions have quieted. Though tech companies have trumpeted sweeping policy announcements to show they’ve made progress, what seems to be missing are the harder conversations about bias—the day to day, on the ground stuff at work that involves real people. That’s a problem. The end of the Pao trial shouldn’t have marked an end to those conversations. It should have marked a beginning.…
[I]t’s incredibly important to keep diversity issues at the forefront of everyone’s awareness, especially in an election year driven largely by divisiveness. It’s not just women’s issues that matter either; there’s race, intersectionality, and income inequality to consider, among other matters. These are all important issues.
But something that may be worth returning to is what happened during the Pao trial one year ago: all those conversations about the subtle biases that seep into people’s behaviors in the workplace. After all, those are the day-to-day injuries that, in aggregate, cause women and minorities to leave. And this isn’t confined to the tech sector. It happens everywhere traditional power structures are firmly in place—so much of America.
In this month’s ABA Journal cover story Minority Women Are Disappearing From BigLaw – And Here’s Why, Liane Jackson wrote:
Eighty-five percent of minority female attorneys in the U.S. will quit large firms within seven years of starting their practice. According to the research and personal stories these women share, it’s not because they want to leave, or because they “can’t cut it.” It’s because they feel they have no choice.
‘When you find ways to exclude and make people feel invisible in their environment, it’s hostile,’ [fifth-year associate] Jenny Jones says. ‘Women face these silent hostilities in ways that men will never have to. It’s very silent, very subtle and you, as a woman of color—people will say you’re too sensitive. So you learn not to say anything because you know that could be a complete career killer. You make it as well as you can until you decide to leave.’
‘There should be no mystery about how you create a diverse workforce. It’s just a commitment,’ [Howard Law School Dean Danielle] Holley-Walker says. ‘There’s a refusal to acknowledge that meritocracy goes hand in hand with diversity.’
It should no longer be a secret: implicit bias is the silent killer of diversity in the legal profession. Implicit or unconscious bias is a mental shortcut “that fills in gaps in our knowledge with similar data from past experiences and cultural norms.” It is a normal part of how we make decisions. Unconscious racial bias pervades our law, education, and politics.
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Harvard’s Project Implicit lets you diagnose your own implicit attitudes and biases regarding race. It is important to be conscious of our hidden biases, but as Stanford law professors R. Richard Banks and Richard Thompson Ford argue in their paper on unconscious bias, “The goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias.”
Last week, Yale Law School’s Committee on Diversity and Inclusion made more than 60 recommendations focusing on student and faculty diversity, mentoring and classroom climate, enhanced support for student and alumni groups, and methods to ensure ongoing progress on these issues. Against the backdrop of broader structures and patterns — concerning gender, race, and class — the Yale Law Journal has also recognized that it needed to proactively confront its own diversity challenges.
In 2015, diversity and inclusion were quite the buzzwords in the technology and legal industries. In 2016, can diversity and inclusion initiatives have a real, significant impact on the data in our profession? Or will these initiatives continue to give only an illusion of corporate fairness?
One year has passed since the Ellen Pao gender discrimination case verdict. Since the trial, as Fortune’s Andrew Nusca noted, “Kleiner has undertaken four initiatives to improve diversity at the firm. Unconscious bias training, the issuing of a diversity report, the actual improvement of diversity in employee ranks, and the retention and advancement of existing employees — think mentors and the like — are all projects.”
Even though Kleiner Perkins won in the court of law, famed partner John Doerr stated, “It made it really clear, even at Kleiner where I’m deeply committed to diversity, we’ve got more we can do and should do to get to a 50/50 world where everybody has an opportunity to contribute.” According to Doerr, twenty-five percent of his partners are diverse and “we’re hugely diverse in age, gender, and ethnicity.”
We will not solve the diversity crisis in the legal profession by using the same conscious and unconscious thinking that have created this crisis. As Intel CEO Brian Krzanich has stated, “It’s not good enough to say we value diversity and then underrepresent women and minorities.”
If your firm’s diversity statistics have remained stagnant (or declined), then it may be time to re-evaluate your firm’s diversity and inclusion efforts.
Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at [email protected], follow him on Twitter (@renweichung), or connect with him on LinkedIn.
